Election of accused not to give evidence or offer explanation

[2-1000] Introduction

The power of a judge to comment upon the failure of the accused to give or call evidence is contained in s 20 Evidence Act 1995. As to the effect of s 20 see generally:

  • Azzopardi v The Queen (2001) 205 CLR 50 especially at [50]–[56]

  • Dyers v The Queen (2002) 210 CLR 285

  • R v Wilson (2005) 62 NSWLR 346

  • Criminal Practice and Procedure NSW at [3-s 20.1]

  • The New Law on Evidence at 20.2ff

  • Uniform Evidence Law at [1.2.1000]ff.

A failure to give a full direction on the decision of the accused not to give evidence may result in a miscarriage of justice: R v Macris (2004) 147 A Crim R 99.

[2-1010] Suggested direction — failure of accused to give or call evidence

[The accused] has not given [or called] any evidence in response to the Crown’s case. There are a number of important directions of law which I must give you in relation to that fact.

Although an accused person is entitled to give or call evidence in a criminal trial, there is no obligation upon [him/her] to do so.

As I have already pointed out, the Crown bears the onus of satisfying you beyond reasonable doubt that the accused is guilty of the offence charged.

[The accused] bears no onus of proof in respect of any fact that is in dispute. I remind you that [he/she] is presumed to be innocent until you have been satisfied beyond reasonable doubt by the evidence led by the Crown that [he/she] is guilty of the offence charged. Therefore, it follows that [the accused] is entitled to say nothing and make the Crown prove [his/her] guilt to the high standard required.

I direct you, as a matter of law, that [the accused’s] decision not to give evidence cannot be used against [him/her] in any way at all during the course of your deliberations. That decision cannot be used by you as amounting to an admission of guilt. You must not draw any inference or reach any conclusion based upon the fact that [the accused] decided not to give (or call) evidence. You cannot use that fact to fill any gaps that you might think exist in the evidence tendered by the Crown. It cannot be used in any way as strengthening the Crown case or in assisting the Crown to prove its case beyond reasonable doubt.

You must not speculate about what might have been said in evidence if [the accused] had given evidence (or what might have been said by [name of person] if that person had been called by the accused as a witness in the trial).

[2-1020] Failure of offer explanation

Where the accused has failed to give an explanation in response to the circumstantial case led by the Crown, a comment can be made on the inference that a jury can draw from that failure. The effect of the comment is that, in the absence of any explanation for the evidence produced by the Crown by way of facts that are peculiarly within the accused’s knowledge, the jury can more safely infer the guilt of the accused. This is usually referred to as a “Weissensteiner direction”. It will be a rare and exceptional case where such a comment would be appropriate. The fact that the accused could have contradicted facts in the Crown case is not sufficient to warrant such a comment. It will usually be prudent for the trial judge to ask the parties about the appropriateness of such a comment.

As to the failure to give an explanation see:

  • Weissensteiner v The Queen (1993) 178 CLR 217

  • RPS v The Queen (2000) 199 CLR 620

  • Azzopardi v The Queen (2001) 205 CLR 50 especially at [64]–[68]

  • Criminal Practice and Procedure NSW at [3-s 20.1]

  • The New Law on Evidence at 20.7

  • Uniform Evidence Law at [1.2.1000].

[2-1030] Weissensteiner comments

Because a Weissensteiner comment is so rarely appropriate and because what is said will depend upon the peculiar facts of the case, it is not appropriate to give a general direction. However, what is said should be made by way of a comment and not a direction. The jury should be informed that is only a comment made by the trial judge and that they are free to disregard it. The comment should be in terms of a failure to explain rather than as a failure to give evidence. The jury should be given directions in accordance with [2-1010] above.